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Supreme Court rules Section 66A unconstitutional; says govts come and go, the law persists


The Supreme Court today ruled on a series of cases challenging the IT Act, including Section 66A (3 years in prison for offensive statements online), Section 79 and its rules (forcing intermediaries to take down online content) and Section 69 (blocking of online content).

How they ruled: Section 66A

The bench, consisting of Justices Chelameswar and Rohinton Fali Nariman struck down Section 66A of the IT Act, ruling against the Central government, which had defended the section. Reading the judgement, Justice Nariman said that there are “three aspects of freedom of expression: discussion, advocacy and incitement. Only when discussion and advocacy reach the level of incitement, is Article 19 (2) (of the Constitution of India), which puts reasonable restrictions on freedom of speech, applicable.

He also said that Section 66A makes no distinction on whether the communication has any impact on public order. The clear and present danger test and the public disorder test ought to be a prerequisite. What may be offensive to one may not be to another, what may be annoying to one may not be to another. That is what renders 66a unconstitutional and vague. “Governments come and governments go, the law persists. And the law must be judged on its own merit. 66A is invalid and it cannot be saved even if the government says it wont abuse the law,” he added.

The Court also struck down section 118 (D) of the Kerala Police Act on the same grounds.

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Section 79 written down, Section 69 remains

However, the court upheld Section 69 in its entirety. Section 69 allows the govt to block websites.

Importantly, while Section 79 and its rules were upheld, the court said that it needs to be read down, and a court order or a government order needs to be taken. Section 79 and the IT rules will also be subject to Article 19 (2) which puts reasonable restrictions on free speech, and they cannot go beyond the limits put by 19(2).

This means an intermediary needs a court order or a government order for getting content taken down.

How Section 66A impacts you

The Act itself provides “Punishment for sending offensive messages through communication service, etc.”, and states that any person who, via a communication device, sends

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a) any information that is grossly offensive or has menacing character; or
b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

shall be punishable with imprisonment for a term which may extend to three years and with fine.

How the Central Government argued in favor of 66A in court

According to a report in the Times of India, the Central Government wanted to continue with Section 66A, saying that it cannot be quashed or thrown out just because the provision is vague about defining the word “grossly offensive”. Tushar Mehta, the additional solicitor general, also said that there need to be greater curbs on the Internet than mainstream media: “There are institutions which are working in other media whether it is paper, television or cinema. There is an institutional approach and there are checks like pre-censorship for TV and films. But in internet there is individual approach and there is no checks and balances or license.”

Our take

This is a great decision for freedom of speech in India.

1. 66A is far too vague, and lends itself to arbitrary implementation by the police, especially phrases like “grossly offensive”, annoyance, inconvenience, ill will. Remember that even the right to offend is an integral part of free speech.

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2. The way the Center argued was a significant shift from when the BJP wasn’t in power, where current Prime Minister Narendra Modi had blacked out his twitter profile in protest against Internet censorship and arrests, and current Finance Minister Arun Jaitley had spoken up in Parliament against Section 66A. In court they did not argue that we will amend the IT Act and bring it in line with 19(2) of the Constitution, but argued to retain it.

3. The institution of safeguards have been ineffective: Just this month, a Standard 11 student was arrested, with a political party representative claiming the student has misrepresented a politician on Facebook.

Most importantly, what each of these laws: 66A, 79 and 69 do is that they shut out counterpoints and dissent in the country. Section 66a forces people to not dissent or offend, and leads to a chilling effect on free speech. Section 79 and its arbitrary rules force intermediaries (like ISPs and even publishers like MediaNama) to delete comments and content else face liability in court. Section 69 allows the government of India to secretly block pages and not disclose its actions to citizens.

Image Credit: Flickr user Brett Tatman

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Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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